The transcript of the Equal Justice for Our Military markup is now available here. The consideration of H.R. 569 runs from pages 12 to 29 of the transcript. The voice vote appears on pages 75-76.
Here’s a recap with some editorial commentary. [Disclosure: I testified in favor of the bill at the subcommittee hearing.]
Rep. Hank Johnson (D-Ga.), the chairman of the subcommittee that considered the bill, began with a description of the legislation and an equity argument for passing the legislation, emphasizing the disparity in the government’s and a servicemember’s ability to bring a case within the Supreme Court’s cert jurisdiction. While noting that cases that would become eligible for Supreme Court review under the bill would very rarely receive a cert grant, he argued that the same is true for other cases already within the Supreme Court’s cert jurisdiction. Rep. Johnson also noted that the Cox Commission report had endorsed the bill, as had the ABA and other public interest groups.
Rep. Lamar Smith (R-Tex.), the committee’s Ranking Member, then spoke against the bill. (Rep. Smith spoke on the House floor in 2008 against that year’s version of H.R. 569, noting then-DOD General Counsel William J. Haynes II’s opposition to the bill.) At the markup, Ranking Member Smith first attacked the bill’s origin, arguing that “this bill was introduced because a single individual was unhappy with the way he had been treated by the military justice system.” He then criticized the Obama Administration for not sending a witness to the subcommittee’s hearing on the bill. He argued that this should “be construed as meaning the administration as the least has serious concerns about the legislation.” He noted that the Defense Department opposed similar legislation in the previous Congress. He expressed concern about DOD’s obligation to provide counsel to prepare the cert petitions that would be authorized by the bill, suggesting that if the bill “made clear that the military’s obligation to provide defense counsel ended at the appellate stage so that convicted service members who wanted to seek Supreme Court review had to secure their own counsel, the burdens might be eased.” He also expressed concern for the increased workload that the Supreme Court and DOJ would experience if the bill were enacted. He then dropped the H-bomb: “The Supreme Court and our military justice system do not need to [expend] scarce resources on expanded appellate rights for convicted service members like Major Hasan, who in the future might well seek to take advantage of H.R. 569.”
Of course, Major Hasan is likely to qualify for Supreme Court review without any help from H.R. 569. If he is ultimately sentenced to death and that sentence is affirmed by ACCA, then the case will fall within CAAF’s automatic jurisdiction, resulting in cert jurisdiction as well. If Major Hasan is sentenced to life or LWOP and ACCA affirms that outcome, the case would fall within CAAF’s practice of granting and summarily affirming in long-term confinement cases if it doesn’t grant review of an issue. And, of course, if ACCA reverses, then the Judge Advocate General of the Army can certify the case to CAAF, which would bring it within the Supremes’ cert jurisdiction. So MAJ Hasan is an unlikely poster child for opposing this bill. [Yes, I know MAJ Hasan is presumed not guilty. If he's ultimately acquitted, then he won't need H.R. 569.]
Ranking Member Smith concluded his remarks by observing: “I hope this is the end of the bill until we at least get some indication of support from the administration or from the Department of Defense or from the Justice Department, none of which has been forthcoming to date.”
Rep. Johnson then addressed Ranking Member Smith’s arguments, noting that the CBO had estimated that the bill would cost only $1 million per year. [In reality, as I've previously discussed, the bill would almost certainly actually cost far less.]
Rep. Howard Coble (R-N.C.), the Ranking Member of the subcommittee that considered the bill, spoke next. As he did at the hearing, Rep. Coble criticized the Obama Administration for not taking a position on the bill. He also argued that “H.R. 569 still neglects to provide safeguards to prevent abuse.” In concluding his remarks in opposition, Rep. Coble argued that “[a]t a minimum I think the administration and Congress should provide appropriate resources to ensure that the military justice system is not detrimentally impacted and to ensure, Mr. Chairman, that appellants do not abuse this new appellate jurisdiction.” I honestly don’t know what sort of potential “abuse” Rep. Coble is concerned about.
Rep. Tom Rooney (R-Fla.) spoke next. Rep. Rooney, who served on active duty as an Army judge advocate, characterized the bill as an insult to the military justice system. He argued that the bill creates “an inference that we [clearly meaning Army JAG Corps members] have done something wrong. I take serious offense to it, and I urge people to vote no on this bill.” He also faulted the bill’s title for “impl[ying] an assumption of error or possible wrongdoing or even malfeasance by not only the JAG Corps, but the Department of Defense and the Army or any of the branches.”
He then proceeded to attack Norbert Basil MacLean III, though not by name, arguing that the bill was brought at the behest of “one gentleman who is now an Australian citizen who pled guilty in his court martial for writing bad checks and then sometime thereafter changed his mind.”
Rep. Rooney touted his military justice expertise, noting that he used to teach military law at West Point. Yet, incongruously, he offered an inaccurate description of the military appellate system. He stated, “Every court martial is automatically-automatically- reviewed by an appeals court from that individual branch.” I wish that were the case. But, as we know, about 20% of all GCM and SPCM convictions are never reviewed by any appeals court because they result in a subjurisdictional sentence. He continued, “Then if the CAAF determines . . . that there is a serious issue of constitutionality a writ of cert will be issued to the Supreme Court.” Uhm, not even close.
Rep. Rooney observed that the “Supreme Court has said time and time again that the military is a separate society.” He then read an excerpt from Goldman v. Weinberger, 475 U.S. 503 (1986), about the great deference that the Supreme Court must give “to the professional judgment of the military authorities concerning the relative importance of a particular military interest.” The Goldman opinion seems like something of an odd vehicle for opposing the bill considering that in 1987, Congress passed a bill to reverse the very Air Force reg that the Supremes upheld in Goldman. Pub. L. No. 100-180 (codified at 10 U.S.C. § 774).
Returning to the task of flogging NBM3, Rep. Rooney argued that CAAF’s judges “take these cases and they run them up to the Supreme Court on a case-by-case basis . . . that filters out the cases which may . . . crowd the docket of the Supreme Court to where it is truly important constitutional questions get there. And that does not include writing bad checks.” As one of the counsel in Weiss, I’m a bit amused by that statement, considering that systemic (though ultimately unsuccessful) challenge to the military justice system arose from a special court-martial conviction for shoplifting a $9 racquetball glove.
Rep. Louie Gohmert (R-Tex.) was the final member of the committee to speak about the bill. He began by noting that servicemembers don’t have the same rights as civilians and discussed the necessity of instant obedience to orders. Rep. Gohmert then argued, “Some people say those in Guantanamo Bay need to have the same rights as everybody else, an American citizen in order for that to be constitutional. If the military doesn’t have the same rights, they should not have the same rights.” This seems an odd argument, considering that a Guantanamo Bay detainee tried by a military commission or in U.S. district court would ultimately have a right to seek cert from the Supremes if convicted at the trial level and unsuccessful on appeal while a servicemember has the right to seek cert only if CAAF grants review. So U.S. servicemembers’ access to the Supreme Court is not only less than that of defendants in state or federal criminal proceedings, but actually less than that of alien unlawful enemy combatants.
After voting in favor of a resolution to impeach U.S. District Judge Thomas Porteous, Jr., the committee by voice vote favorably reported H.R. 569 as amended by the subcommittee to the full House.
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